Case Information
*1 Before SMITH, WIENER, and HAYNES, Circuit Judges.
PER CURIAM: [*]
Dennis Ray Freeman, Texas prisoner # 1873252, is serving life in prison for attempted sexual assault of a child and indecency with a child. Freeman filed an unsuccessful 28 U.S.C. § 2254 petition challenging his attempted sexual assault conviction. He subsequently filed a motion pursuant to Federal Rule of Civil Procedure 60(b)(3), seeking relief from the denial of his § 2254 petition on the basis of fraud, misrepresentation, or misconduct. The district *2 Case: 16-41644 Document: 00514189098 Page: 2 Date Filed: 10/10/2017
No. 16-41644
court denied the motion. Freeman now seeks a certificate of appealability (COA) to appeal the district court’s denial of his Rule 60(b) motion.
Before he can appeal the denial of his motion under Rule 60(b), Freeman must obtain a COA. See Ochoa Canales v. Quarterman , 507 F.3d 884, 888 (5th Cir. 2007). The district court did not determine whether Freeman was entitled to a COA. Because the district court has not issued a COA ruling, we assume without deciding that we lack jurisdiction over the appeal. See Rule 11(a), R ULES G OVERNING § 2254 P ROCEEDINGS ; Cardenas v. Thaler , 651 F.3d 442, 444 & nn.1-2 (5th Cir. 2011). Nevertheless, we decline to remand this case to the district court for a COA ruling because the appeal is frivolous, and a remand would be futile. See United States v. Alvarez , 210 F.3d 309, 310 (5th Cir. 2000).
In the alternative, even if we have jurisdiction sufficient to grant or deny a COA in this court absent a COA ruling in the district court, we would deny a COA. To obtain a COA, Freeman must establish that reasonable jurists would debate that the district court abused its discretion in denying the Rule 60(b) motion. See Slack v. McDaniel , 529 U.S. 473, 484 (2000); Hernandez v. Thaler , 630 F.3d 420, 427-28 (5th Cir. 2011). He has failed to make the required showing.
Accordingly, the appeal is DISMISSED for lack of jurisdiction, and Freeman’s motions for a COA, for leave to proceed in forma pauperis on appeal, and for the appointment of counsel are DENIED AS MOOT.
2
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.